Evidence to Vary Terms of Mortgage—Common Law and Statute.
3. Held, further, under the common rule voiced by sections 3517 and 3890 of the Rev. Codes of 1899, that the evidence offered to establish said agreement was inadmissible to defeat the written instrument, or to establish any conditions not found in the mortgage.
Extraneous Agreements Discharged by Delivery.
4. Held, further, that the mortgage, when delivered, took effect absolutely and according to its terms, and the same was wholly discharged from all the extraneous agreements and conditions pleaded in the answer.
Previously Executed Note—Sufficiqnt Consideration.
5. The mortgage was not given for some two months after the execution and delivery of the note described therein. Held, that the note is sufficient consideration to sustain the mortgage.
Defense of Failure of Consideration—Evidence to Vary Written Instrument.
6. Held, further, that, where the defense to a written instrument is failure of consideration, parol evidence is inadmissible to controvert or vary the terms of the instrument, or to create terms or conditions not found in the writing.
Nondelivery—Parol Evidence.
7. Parol evidence is always admissible to show that a real estate mortgage was not delivered, and such evidence is not open to the objection that it contradicts or varies the terms of the instrument. Where, however, a delivery is shown to have been made, the mortgage, under section 3517, Rev. Codes 1899, takes effect freed from all conditions upon which the delivery was made.
Appeal from the District Court, Grand Forks county. Fisk, J.
Action by F. S. Sargent, as receiver of the Security Trust Company, against John E. Cooley and Minnie E. Clifford. Judgment for defendants, and plaintiff appeals.
Reversed.
Templeton & Rex, for appellant.
Proof to break down a mortgage must be “clear, satisfactory and specific, and of such a character as to leave in the mind of the Chancellor no hestitation or substantial doubt.” McGuin v. Lee, 10 N. D. 160, 86 N. W. 717.
Under the statute of this state, “A grant cannot be delivered to the grantee conditionally. Delivery to him, or his agent, as such, is necessarily absolute; and the instrument takes effect thereupon, dis
